The Eviction Process

Under older law, a landlord was entitled to use any reasonable and necessary means to oust a tenant in breach of the lease or rental agreement.

A landlord who was not able to oust the tenant could resort to a court action called an ejectment action to evict the tenant. An ejectment action is a civil lawsuit, with consummate expense, complexity, and delay. Ejectment actions still exist in current law, but are seldom utilized in the context of landlord-tenant scenarios today.

The laws allowing landlords to self-help evict lead to frequent breaches of the peace. Because of this, in the late nineteenth century more and more states enacted summary eviction statutes. All states in the US now have a summary eviction process, often called unlawful detainer and/or forcible detainer. The goal of the summary eviction statutes was to balance the interests of landlords in a speedy remedy to regain possession of property from tenants in breach, with the interests of tenants to quiet enjoyment and the general societal interests of maintaining the peace.

Because one of the paramount goals of the summary eviction statutes in maintaining the peace, the modern trend is to limit the landlord to only judicial means of evicting tenants. In many states it is illegal for a landlord to use any extrajudicial means to evict a tenant. The landlord’s only means to evict a tenant in many jurisdictions is through court order. Self-help eviction is now illegal in those states.

To preserve the speedy nature of the summary eviction process, many summary eviction statutes limit the defenses tenants can raise, and allow a dispositive hearing in an expedited civil litigation process, often amounting to only a few weeks, compared to months or even years in a civil lawsuit, such as the ejectment action.

The court’s jurisdiction to hear claims brought by the landlord are likewise limited in many states. In some states the only remedy the landlord can seek is possession. In most states, the landlord can also seek monetary judgment for damages related to the tenancy, such as unpaid rent.

Generally, the only defenses a tenant can raise are either procedural, or substantive defenses that would excuse the tenant’s breach (such as waiver, accord and satisfaction, etc.). The modern trend is to allow defenses such as retaliatory eviction, breach of a warranty of habitability, and discrimination claims.

Additional defenses may be raised by residential tenants who receive federal “Section 8” benefits. Note that there are different Section 8 programs, each with a distinct set of rules.

Also many local county and municipal governments have enacted additional laws effecting landlord-tenant law and the eviction process.

The expedited nature of the summary eviction process and the limitation of defenses has been upheld by the US Supreme Court.

In many jurisdictions the eviction process begins with a notice. This is often a notice to pay rent or vacate, or notice terminating a periodic tenancy. The rules for proper service of these eviction notices varies by state. In some states the cure period can be shortened or even waived by contract, while in many states such lease contact provision are not enforceable.

Parties.

Typically the parties to the summary eviction process are the landlord and tenant. Some states allow a property manager or agent be the plaintiff. Usually a landlord or tenant can bring the summary eviction action against a sub-tenant. However, courts in some jurisdiction have ruled that as a matter of statutory interpretation a landlord may bring a summary eviction action against a sub-tenant if lease language so stipulates.

In some states, a purchaser at a foreclosure auction can utilize summary eviction procedures.

Some states allow a seller of real property to bring a summary eviction action against a purchaser in possession who failed to close the sale. In other states, courts have held that the seller cannot utilize the summary eviction process, but must instead bring an ejectment action.